Last updated: May 1, 2018
AGREEMENT BETWEEN USER AND TRA.
The “Company” consists of Tidal Marketing, Inc. all related companies, its parents, subsidiaries, publisher sites, respective directors, officers, shareholders, employees, affiliates, assigns, consultants and agents.
The “Website” consists of tra.com, all websites owned and operated by Tidal Marketing and its subsidiaries, related companies, publishers, affiliates, assigns, and agents.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE. YOUR ACCESS AND/OR USE OF THE WEBSITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT FULLY ACCEPT THESE TERMS, DO NOT USE OR ACCESS THE WEBSITE.
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how claims you and the Company may have against each other are resolved (see the Section on “Arbitration” below), including a class action waiver and an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with the Section on “Arbitration,” below.
The Website is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Website constitutes your agreement to all such terms, conditions, and notices.
This Website is not directed towards residents of the European Union. Under no circumstances are residents of the European Union permitted to visit our Sites and share their personal information.
Conditions of Use
THESE TERMS AND CONDITIONS OF USE APPLY TO ALL MATERIALS, ONLINE COMMUNICATIONS AND OTHER INFORMATION AND MATERIALS THAT ARE OR BECOME AVAILABLE ON OR THROUGH THE WEBSITE (COLLECTIVELY, THE “MATERIAL”). PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING THE WEBSITE YOU SPECIFICALLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS OF USE AND YOU SPECIFICALLY AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO EACH OF THE PROVISIONS CONTAINED HEREIN. THESE TERMS AND CONDITIONS MAY BE REVISED AT ANY TIME BY UPDATING THIS POSTING. YOU ARE BOUND BY ANY SUCH REVISIONS AND SHOULD THEREFORE PERIODICALLY VISIT THIS PAGE TO REVIEW THE THEN CURRENT TERMS AND CONDITIONS TO WHICH YOU ARE BOUND.
THESE TERMS AND CONDITIONS OF USE FORM A LEGALLY BINDING AGREEMENT. IF YOU DO NOT AGREE TO ANY OR ALL OF THE PROVISIONS FOUND IN THESE TERMS AND CONDITIONS OF USE, PLEASE IMMEDIATELY EXIT THE WEBSITE. WE RESERVE THE RIGHT TO TERMINATE YOUR USE OF OR ACCESS TO THE WEBSITE OR YOUR ACCOUNT AT ANY TIME FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, IF WE LEARN THAT YOU HAVE VIOLATED THESE TERMS AND CONDITIONS OF USE.
Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE MATERIAL PROVIDED ON THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE, ANY USE OF THE WEBSITE AND ANY WEBSITE TO WHICH THE WEBSITE IS LINKED. COMPANY DOES NOT WARRANT THAT THE MATERIAL ON THE WEBSITE IS COMPLETE OR ACCURATE, THAT USE OF THIS WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THIS WEBSITE OR SERVER OR ANY MATERIAL ON THIS WEBSITE IS FREE OF DISABLING DEVICES (AS HEREINAFTER DEFINED).
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
A “DISABLING DEVICE” IS DEFINED AS ANY SOFTWARE, DOCUMENT, MESSAGE OR OTHER MATERIAL WHICH CONTAINS A COMPUTER VIRUS, WORM, TROJAN HORSE, TIME-BOMB OR OTHER HARMFUL DEVICE WHICH MAY ERASE, SCRAMBLE, LOCK OR DISABLE COMPUTER SOFTWARE OR EQUIPMENT OR MAY PREVENT USERS FROM USING A WEBSITE OR ANY OTHER ITEM OF HARDWARE OR SOFTWARE.
Limitations on Authority
WHILE COMPANY USES REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION ON THE WEBSITE, ERRORS OR OMISSIONS SOMETIMES OCCUR.
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL COMPANY, OR ITS OFFICERS, EMPLOYEES, DIRECTORS, MANAGERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM THE USE OR INABILITY TO USE THIS WEBSITE, OR THE MATERIAL, INCLUDING WITHOUT LIMITATION, USE OF OR RELIANCE ON THE MATERIAL, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETION OF FILES, DISABLING DEVICES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE WEBSITE.
YOU (AND NOT COMPANY OR ITS PARENTS OR AFFILIATES) SOLELY ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION RELATED TO ANY DAMAGE, HARM, INJURY OR MALFUNCTION ASSOCIATED WITH YOUR USE OF THE WEBSITE AND/OR ITS CONTENTS.
Initial Dispute Resolution. The Company is available by email at support@TRA.com address any concerns you may have regarding your use of the Website. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Any matter and/or dispute relating in any way to your visit to or interaction with the Website, including compliance with these Terms, which is not so resolved shall be submitted to binding confidential arbitration as provided in the Section entitled Arbitration below.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
If the parties don’t reach an agreed upon solution pursuant to the Initial Dispute-Resolution contemplated in the Section above, you and the Company each agree that any dispute, claim or controversy arising out of or relating to our products or services or the Website (including, without limitation, tra.com, the products or services offered through the Website, any mobile/tablet sites or social media presence, and any related company), or these Terms or the breach, enforcement, interpretation or validity thereof, shall be determined by binding arbitration before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. By agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes. Notwithstanding our right to modify these Terms, the Company agrees that we may not modify these arbitration provisions without notice to you and your agreement to such changes. Further, any such modification to the dispute and/or arbitration requirements shall not apply to claims arising prior to the date of such modification and any such changes shall not affect your prior election to opt out of arbitration as provided below. In connection with these arbitration provisions, the parties agree as follows:
This arbitration agreement is reciprocally binding on all parties such that both you and the Company are required to arbitrate claims;
Remedies that would otherwise be available to the parties under applicable federal, state or local laws, including the recovery of attorney’s fees, remain available under this arbitration clause;
You have a right to an in-person hearing in your hometown area within the United States;
You have the right to the use of counsel of your choosing at your own expense if you so elect, and to recover attorneys’ fees and expenses of arbitration to the extent provided by law;
The parties are permitted the discovery or exchange of non-privileged information relevant to the dispute in accordance with JAMS procedures; and
The arbitrator’s award will consist of a written statement stating the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based.
Arbitration Filing Fees. If you initiate the arbitration, to the extent the filing fee for the arbitration exceeds the lesser of $250 or the cost of filing a lawsuit, the Company will pay the additional cost. A request for payment of any such fees should be submitted to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. All other costs of the arbitration will be split among the parties including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services. You will be responsible for your own attorney fees and expenses unless the arbitration rules or applicable law permit you to recover your attorney’s fees.
Waiver of Certain Rights from Court.
The parties understand that, absent this mandatory provision, they would have the right to sue in court. Court proceedings generally provide greater discovery rights, a judge or jury trial, and could provide greater opportunity for appellate review. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation.
Class Action Waiver.
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.
Exception – Small Claims Court Claims.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. Any appeal of the decision in such small claims court shall be subject to these arbitration provisions.
30-Day Right to Opt-Out.
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in this Section by sending written notice of your decision to opt-out to the following address 27702 Crown Valley Pkwy D-4 #130 Ladera Ranch, CA 92694. The notice must be sent within thirty (30) days of your first use of the Website, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, we also will not be bound by them.
YOU AGREE THAT BY ENTERING INTO THESE TERMS, IN PARTICULAR THE AGREEMENT TO ARBITRATE, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT YOU MAY BRING CLAIMS AGAINST THE COMPANY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION OR OTHER ACTION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU ACKNOWLEDGE THAT BY ENTERING INTO THESE TERMS, YOU INTEND TO BE LEGALLY BOUND AND, IN ADDITION TO OTHER GOOD AND VALUABLE CONSIDERATION, YOU AGREE THAT THE COMPANYâ€™S AGREEMENT TO ARBITRATE CLAIMS CONSTITUTES CONSIDERATION FOR SUCH WAIVER. THE CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT TO ARBITRATE AND CAN NOT BE SEVERED FROM THIS AGREEMENT TO ARBITRATE DISPUTES.
Third Party Content
Company may distribute content supplied by third parties on the Website. Any opinions, advice, statement, services, offers, or other information or content expressed or made available by third parties, including information providers or any other user of the Website, are those of the respective author(s) or distributor(s) and not of Company.
Links to Third Party Sites
The Website may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Company and Company is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Company is not responsible for webcasting or any other form of transmission received from any Linked Site. Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Company of the site or any association with its operators.
No Unlawful or Prohibited Use
As a condition of your use of the Website, you warrant to Company that you will not use the Website for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Website in any manner which could damage, disable, overburden, or impair the Website or interfere with any other partyâ€™s use and enjoyment of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Website.
Legal Jurisdictions Only
The services described on the Website are only for persons in those states and jurisdictions where such services may legally be sold. Those who choose to access this website do so at their own initiative and are responsible for compliance with local laws. Some services may not be available in all jurisdictions and nothing on the Website shall be considered a solicitation to buy or an offer to sell any services to any person in any jurisdiction where such offer, solicitation, purchase or sale would be unlawful.
Access to Password Protected or Secure Areas
Access to and use of password protected or secure areas of the Website are restricted to authorized persons only. Anyone accessing or who attempts to access such areas without authorization may be subject to prosecution.
Ownership of Information
If you send us any creative materials, such as comments, suggestions, ideas, concepts, drawings, pictures, or other materials (collectively, the “Submissions”), you agree that the Submissions shall be deemed, and shall remain, the property of Company. None of the Submissions shall be subject to any obligation of confidentiality on the part of Company, and Company shall not be liable for any use or disclosure of any of the Submissions. Without limitation of the foregoing, Company shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the world and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.
Company manages and controls the Website from its offices located in California (United States of America). Company makes no representation that the Information or other materials in the Website are appropriate or available for use in other locations. If you choose to access the Website outside of the state of California through your own initiative, to the extent the local laws in the geographic region in which you are located are applicable to your access of and activities on the website you are responsible for compliance with such local laws.
These Terms and Conditions of Use shall be governed by and construed in accordance with the laws of the State of California, United States of America, without giving effect to any principles of choice of law or conflicts of law that would require the application of the laws of a jurisdiction other than the State of California. Venue for all disputes will be the Federal and State courts located in Orange County, California. If any provision of these Terms and Conditions of Use shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions of Use and shall not affect the validity and enforceability of any remaining provisions. These Terms and Conditions of Use constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter.
Copyright and Trademark Notices
All Material included on the Website, except third party content as referenced above, is the property of Company and is protected by United States and international copyright laws. No portion of the Material on the Website may be reprinted or republished in any form without the express written permission of Company or, with respect to third party content, its respective owner. You may download Material from the Website your own personal, non-commercial use only, provided you do not modify the Material and keep intact all copyright and other proprietary notices. You may not further distribute or display such Material for any purpose. Without our prior written consent, you may not (a) allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam); (b) use any high volume, automated, or electronic means (including without limitation robots, spiders, scripts or other automatic device) to monitor or copy our web pages or the content contained thereon; (c) link or deep-link to the Website for any purpose; or (d) frame the Website, place pop-up windows over its pages, or otherwise affect the display of its pages.
Certain of the names, logos, and other materials displayed on the Website may constitute trademarks, tradenames, service marks or logos (“Marks”) of Company or third parties. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith, with the exception of the third party Marks, remains with Company and are protected by United States and international trademark laws. Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any of the Marks displayed on the Website. Your use of the Marks displayed on the Website, or any other content on the Website, except as provided herein, is strictly prohibited. All Marks not owned by Company that appear on the Website are the property of their respective owners.
Copyright Infringement Policy
In accordance with the requirements set forth in the Digital Millennium Copyright Act, Title 17 United States Code Section 512(c)(2) (“DMCA”), Company will investigate notices of copyright infringement and take appropriate remedial action. If you believe that any Content on the Website has been used or copied in a manner that infringes your work, please provide a written notification of claimed copyright infringement to the Designated Agent for the Site containing the following elements as set forth in the DMCA:
- a physical or electronic signature of the owner of the copyright interest that is alleged to have been infringed or the person authorized to act on behalf of the owner;
- identification of the copyrighted work(s) claimed to have been infringed, including copyright date;
- identification of the Content you claim to be infringing and which you request be removed from the Site or access to which is to be disabled along with a description of where the infringing Content is located;
- information reasonably sufficient to allow us to contact you, such as a physical address, telephone number and an email address;
- a statement by you that you have a good faith belief that the use of the Content identified in your written notification in the manner complained of is not authorized by you or the copyright owner, its agent or the law; and a statement by you that the information in your written notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on behalf of the copyright owner.
You agree to indemnify, defend and hold harmless Company, its parents, subsidiaries, affiliates, officers, directors, managers and other partners, employees, consultants and agents, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) resulting or arising from (1) any information you (or anyone accessing the your account using your password) submit through the Website, (2) your violation of these Terms and Conditions of Use or applicable law, (3) your (or anyone using your account/computer/device) violation of any rights of any other person or entity, or (4) any Disabling Device or other similar harmful or deleterious programming routines input by you into the Website.
Exclusions and Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Company may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
You agree that Company, in its sole discretion, may terminate your access to the Website without prior notice, for any reason, including, without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms and Conditions of Use. FURTHER, YOU AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE WEBSITE. The provisions of these Terms and Conditions of Use shall survive any termination of your access to the Website, Material or Software.
Violations of Terms and Conditions of Use
Company reserves the right to seek any remedy available at law or in equity for any violation of these Terms and Conditions of Use, including the right to block access from a particular Internet address to the Website, and irreparable harm will be presumed by any violation of these Terms and Conditions of Use.
FEEDBACK AND SUBMISSIONS
Company welcomes your feedback and suggestions about its programs or services or with respect to how to improve the Site. By transmitting any suggestions, information, material, or other content (collectively, “feedback”) to Company, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Company and enable Company and/or the Website to use such feedback. In addition, any feedback received through the Site will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Company and/or the Website to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.